State by Burnquist v. Bollenbach

• Decision Date: 29 January 1954
• Docket Number: No. 36086,36086
• Citation: 241 Minn. 103,63 N.W.2d 278
• Parties: STATE, by BURNQUIST, Atty. Gen. v. BOLLENBACH et al.
• Court: Minnesota Supreme Court

Page 278

63 N.W.2d 278

241 Minn. 103

STATE, by BURNQUIST, Atty. Gen. v. BOLLENBACH et al.

No. 36086.

Supreme Court of Minnesota.

Jan. 29, 1954.

Rehearing Denied April 1, 1954.

Syllabus by the Court.

1. In an action tried by the court without a jury, the trial court in granting judgment of dismissal on the merits is required under Rules 41.02 and 52.01 of Rules of Civil Procedure to make findings of fact and conclusions of law, and its findings are not to be set aside unless clearly erroneous and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses.

2. The right to hunt and fish is an incident of ownership of soil. Every person has exclusive dominion over the soil which he absolutely owns; hence, such an owner of land has the exclusive right of hunting and fishing on his land and the waters covering it.

3. The ownership of the soil under most bodies of water in Minnesota is determined by whether or not the body of water was navigable on May 11, 1858, the date this state was admitted to the Union. The state, upon admission to the Union, became vested with title in trust for the public to the beds of all waters then navigable and not previously granted by the United States, subject to the paramount power over such waters by the United States as a result of its power to regulate interstate commerce. The title to beds of water not navigable at the time of this state's admission to the Union and not previously patented remained in the United States and passed by subsequent patent to the purchaser of the riparian upland unless specifically reserved in the United States by the act of conveyance.

4. Navigability for purposes of determining title to water beds is a federal question controlled by the federal test of navigability. Under federal decisions, streams or lakes which are navigable in fact are regarded as navigable in law. They are navigable in fact when they are used, or are susceptible of use, in their natural and ordinary condition, as highways for commerce over which trade and travel are or may be conducted in the customary modes of trade and travel on water. Navigability does not depend on the particular mode in which such use is or may be had, nor on an absence of occasional difficulties in navigation, but on the fact, if it be a fact, that the stream or lake in its natural and ordinary condition affords a channel for useful commerce.

5. Evidence in instant case considered in light of federal test of navigability and Held to support trial court's finding that lake in question was not navigable in fact at the time Minnesota was admitted to the Union. Consequently, in view of theory upon which petitioner tried and submitted its case to the court below, trial court was justified in concluding that title to the bed of said lake was in the sole riparian owner of lands surrounding said lake and that said lake was not a public body of water upon which the public had a right to hunt and fish.

6. Theory advanced by petitioner for the first time on appeal that right to hunt and fish on said lake had been dedicated to the public Held not supported by the evidence.

7. An assignment of error based on mere assertion and not supported by any argument or authorities is deemed waived and will not be considered on appeal unless prejudicial error is obvious on mere inspection.

Affirmed.

J. A. A. Burnquist, Atty. Gen., John H. Burwell, Asst. Atty. Gen., Thomas M. Quayle, Sp. Asst. Atty. Gen., for appellant.

Bundlie, Kelley, Finley & Maun and Mandt Torrison, St. Paul, Rosengren & Rufer, Fergus Falls, for respondents.

CHRISTIANSON, Justice.

In October 1949 the attorney general, upon the request of the commissioner of conservation, filed a petition in the district court for Otter Tail county seeking to acquire by condemnation an easement over private property for the purpose of establishing and maintaining a public right of way for ingress to and egress from Five Lake located in Otter Tail county. The petition also called for the acquisition of a tract of land not to exceed five acres situated on the north shore of Five Lake and adjoining the proposed easement for use as a public camping and parking area. The proceedings were brought under M.S.A.1949, § 97.48, subd. 15, which provides:

'The commissioner shall acquire by * * * condemnation in the manner prescribed by section 117.20, in the name of the state, * * * parking or camping areas of not to exceed five acres, adjacent to public waters to which the public theretofore had no access or where the access is inadequate and upon which the public has a right to hunt and fish, and such easements and rights of way as may be required to connect such areas with public highways, provided, no acquisition costing over $1,000 shall be made without first obtaining the approval of the executive council, and provided further that the authority herein granted shall not extend to * * * lakes which are unmeandered or which contain less than 200 acres within the meander lines.'

Objections to the petition were filed by respondent William M. Bollenbach, the sole owner in fee simple of all the riparian land surrounding Five Lake since 1943, on several grounds which in substance were that the statutory requirements for condemnation did not exist and particularly that Five Lake was not a navigable public body of water. Trial was commenced on March 10, 1952, before the court without a jury. At the conclusion of all the evidence offered in support of the petition, respondent Bollenbach moved under Rule 41.02 of the Rules of Civil Procedure to dismiss the petition with leave reserved to submit evidence at a later date if his motion was denied. The trial court took the motion under advisement and thereafter filed detailed findings of fact and conclusions of law and ordered that judgment of dismissal with prejudice be entered. Petitioner thereafter moved to amend the trial court's findings of fact, conclusions of law, and order for judgment or, if that motion were denied, in the alternative for a new trial. Appeal is taken from the order denying this alternative motion. ¹

Five Lake is located in section 5 of Hobart township in Otter Tail county. It is one of a group of small lakes lying in the north end of that county. It is a glacially formed meandered lake with a maximum length of about one mile and a maximum width of about one-half a mile. Although there is some dispute as to whether there were 200 acres of water area within the meander lines of the lake at the time of filing the condemnation petition in 1949, the evidence is clear that in the spring of 1948 there were 228 acres of water area within its meander lines. The lake is largely open water, but it also contains some weeded areas. The shore line was described as being composed of steep banks except for low marshy portions on the east and south sides of the lake. The evidence further discloses that most of the shore line has a thin fringe of rushes, cattails, and rice. The lake contains areas of substantial water depth approximately 40 feet in places. Five Lake has no inlet. Situated to the east of Five Lake is Fairy Lake, sometimes called Four Lake. It is a small grassy pond which possibly at some time had a water connection with Five Lake. To the west of Five Lake a short distance lies Lake Six; and to the south of Lake Six and southwest of Lake Five lies Lake Seven, also known as Scalp Lake. Five Lake, Lake Six, and Scalp Lake are very similar in area and geological characteristics and are situated in a fairly wooded region composed principally of hardwood. There is not and never has been a water connection between Five Lake and Lake Six; however, there is a small connecting creek between Lake Six and Scalp Lake.

Although there is considerable dispute concerning whether Five Lake has an outlet and whether it has ever had a water connection with Scalp Lake, which questions will be considered in detail later, the evidence is clear and uncontradicted that at the south end of Five Lake there is a combination wild hay and grass meadow and marshy area which was generally termed a swale. This swale extends southeasterly to a small pond called Little Mud or Pickerel Lake and then westerly to Scalp Lake. There was testimony that at particular times in the past wild hay has been cut, and cattle, sheep, and possibly horses have been pastured, on the section of the swale between Five Lake and Little Mud Lake. At all times within the memories of the oldest settlers produced as witnesses at the trial, a road has passed across the swale between Lake Five and Scalp Lake. The road has in the past been corduroyed because of the soft wet terrain over which it passed, but recently the road has been improved and a 16-inch culvert inserted to carry water in the swale from one side of the road to the other. Automobiles have been used on the road ever since their advent as a means of transportation. Before that time, team and wagon traffic used the road, and the oldest settler called as a witness could not recall any time when the road was not usable for such a purpose.

Scalp Lake has a small creek as an outlet running to the southeast, and it discharges its surplus water through a series of other lakes joined by connecting creeks eventually flowing into the Otter Tail River, which, in turn, discharges its water through a series of lakes culminating in the Red River of the North at Breckenridge. There is no evidence that any of the connecting creeks or lakes are navigable or that they have been used or are capable of being used for useful travel or floatage of logs, the only evidence on their use and condition being that at some point below the outlet of Scalp Lake the creek was only 48 inches in width and flowed through a spruce swamp. Five Lake is not and has not been connected with other lakes or streams by any well-defined portage or trail used as a carrying place for boats.

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